The Intersection of Criminal and Immigration Law:
Stop and Look Both Ways Before Crossing
by J.S. Lucas Fleming, Esq. and Arturo Rios, Jr., Esq.
Most attorneys have carved out a specialized practice niche for themselves with the understanding that they can better serve their clients’ needs in one or two particular areas if they have a strong command of those areas and are intimately familiar with their current laws, cases, and nuances.
There are times, however, when a case requires such a specialized knowledge in two or more practice areas that are seemingly unrelated, such as criminal and civil law. One prominent example is the intersection of criminal and immigration law, which has become particularly treacherous over the past few years. Significant changes in immigration procedures have led to severe sanctions and consequences for immigrants who commit crimes, including mandatory detention and deportation, regardless of legal or non-legal status. As a result, it’s imperative for a criminal attorney with a non-U.S. citizen client to work closely with an experienced immigration attorney every step of the process to avoid disastrous pitfalls—and potential malpractice.
There are three primary reasons why a criminal defense attorney representing a non-U.S. citizen should have an immigration lawyer involved in the case, regardless of the client’s immigration status:
I. The Consequences of a Criminal Conviction or Plea May Result in Deportation—or Worse
Even highly experienced criminal defense attorneys may not fully appreciate the effect of criminal charges and convictions on clients who are not citizens of the United States. At the time a plea is entered in criminal court, the judge must inquire as to the defendant’s citizenship status.1 Once a defendant is identified on public record as a non-citizen with a criminal history, federal immigration authorities are effectively placed on notice; more important, they may interpret a plea very differently from criminal court. Thus, what may seem like a desirable plea to a client who is a citizen (such as a reduced sentence or probation) may have disastrous consequences for a non-citizen, even if the client has a visa or green card or is married to a U.S. citizen.
There are two main classifications into which an alien or non-citizen may fall if he or she is convicted or accepts a plea to a criminal felony charge: deportable and inadmissible. Non-citizens who are charged with deportability upon criminal conviction or plea have immigration charges filed against them, and they must appear before a federal immigration judge of the Executive Office of Immigration Review (a division of the Department of Justice). Such persons will likely have limited available defenses.
Inadmissibility, by contrast, precludes non-citizens from obtaining a green card because a conviction or plea automatically renders them inadmissible. Immigration law requires that “all applicants for lawful status have good moral character, whether it is for lawful permanent residency, a visa, or refugee status.”2 In addition to criminal arrests and convictions, any evidence of criminal activity can potentially call a non-citizen’s good moral character into question, and immigration authorities may deny permanent resident status as a result. An inadmissibility classification is therefore far less desirable than deportable status because the latter at least gives aliens a chance at remaining in the United States legally. There are waivers for inadmissibility in some instances, but they are beyond the scope of this article.
II. Mistakes Are Almost Impossible to Correct
The immigration system rarely affords second chances for non-U.S. citizen defendants whose criminal attorneys failed to appreciate the implications of a conviction or plea. Even if there is are viable grounds to vacate a plea (such as evidence of procedural error), it is extremely difficult to persuade a judge to vacate the plea for non-citizens in criminal cases. The judge may determine, for example, that the motion to vacate a plea was done strictly to preserve the client’s immigration interests, which is not a legitimate purpose in a criminal case. Moreover, even if a plea is vacated on non-procedural grounds, the immigration judge may ignore the vacateur if it was given solely for immigration benefits.
In addition, felony charges often trigger mandatory detention in a federal facility such as the Krome facility in Miami. In some cases, release on bond may not even be available to non-citizens facing criminal felony charges, who must be held at such a facility until trial.
III. Errors and Oversights Present Potential Ethics Violations and Malpractice
Finally, criminal attorneys representing non-citizens must be ever-mindful of the potential for sanctions and malpractice claims for failing to consider the effects of a criminal conviction or plea on the client’s immigration status.
Immigration regulations and procedures have changed radically since September 11, 2001. As a result, immigration has surpassed tax as the most complicated practice area in the law. In light of the increasingly high risk of lengthy detention and deportation, it’s more critical than ever that criminal attorneys work closely with immigration attorneys every step of the way when representing non-U.S. citizens, even if they are in the country legally on valid visas or as permanent resident aliens. During the initial consultation, criminal counsel should always ask a new client whether he or she is a non-citizen before outlining a case strategy.
It’s also a good idea to develop an ongoing partnership with an immigration lawyer to avoid potential pitfalls and problems before they occur. It’s equally important for immigration attorneys to consult with a criminal attorney before representing a client facing criminal charges. With so much at stake, clients at the intersection of criminal and immigration need experts on both sides to guide them across safely. Although this may present a significant financial problem for many clients, the two attorneys may agree to a reduced or split fee agreement—after all, it is in their best interests to ensure that the case is handled properly on both ends.
Please note that the information presented in this article provides a cursory overview of the myriad issues facing criminal attorneys representing non-citizen immigrants. We strongly encourage anyone facing a criminal charge and/or immigration issue to contact an experienced attorney.
Former state prosecutor Lucas Fleming a graduate of Stetson and is the founding partner of The Fleming Law Group, P.A. in St. Petersburg, which handles all aspects of criminal defense, including addiction and mental health treatment assistance.
Arturo Rios, Jr. is also a Stetson graduate and focuses on the practice of deportation defense and complex immigration litigation at the Law Offices of Arturo M. Rios, P.A. in St. Petersburg.
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